We’ve written a lot about the failure of the United States Senate to confirm judges, a failure made apparent again when Republicans blockaded President Obama’s nominees to the United States Court of Appeals for the District of Columbia Circuit. But that failure is part of a wider failure – the failure of the Senate itself, brought on by the unprecedented misuse of arcane rules and procedures by the Republican minority.

In addition to obstructing scores of judicial nominees, the abuse of rules, particularly the filibuster, has killed one essential piece of legislation after another. That’s why AFJ among the leaders of a coalition called Fix The Senate Now. As the coalition’s website explains:

Republicans derailed energy and climate legislation, halted the DREAM Act, which passed the House while receiving 55 votes in the Senate, and blocked any debate on the Employee Free Choice Act, which passed the House with an overwhelming majority and garnered 59 supporters in the Senate. … In July, Senate Republicans blocked the Bring Jobs Home Act, which would have encouraged in-sourcing by providing tax incentives to companies that bring jobs back to the United States from overseas.

In this report, AFJ connects the dots – illustrating the direct link between Republican stalling tactics and the crisis on the federal bench.

There are those who say that the filibuster is a legitimate part of the democratic process – one of the few ways a minority can protect its interests against the tyranny of the majority. We agree. In fact, we’ve sometimes supported filibusters ourselves in the battles over the appointment of extremist judges during the Reagan and Bush years. But we never advocated filibustering all the Republican judges, just the ones who were well beyond the mainstream. By contrast, today, even nominees who have no opposition at all, and are endorsed by the Republican senators in their state, get the full obstructionist treatment. Indeed, Republicans are not even pretending that they oppose the D.C. Circuit nominees on the merits.

And again, the issue isn’t just judges. As Fix The Senate Now explains:

Senate Minority Leader Mitch McConnell (R-KY) infamously declared that his “single most important” goal was to make President Obama a “one-term president.” His playbook from the start of the Obama Administration was simple – to convince his caucus to obstruct anything and everything. As a result, to an extent unprecedented in American history, 60 votes became the needed threshold for nearly every order of Senate business.

Earlier this year, Senators reached an agreement to confirm some of President Obama’s executive branch nominees. But now, the Republicans have reverted to obstruction-as-usual.

The undeniable fact is that this legislative tool, which we still believe has a legitimate purpose, has been misused to the point that it now poses a clear and present danger to the future of the country, and it’s time for us and others to reassess it in its current form. That’s why we support reforms designed to restore balance between the will of the majority and the rights of the minority, including abolishing the filibuster for judicial nominees if Republicans refuse to stop using it as a weapon of mass obstruction.

William Blake wrote that “The man who never alters his opinion is like standing water, and breeds reptiles of the mind.” The old-guard Democrats and thoughtful Republicans who seem reluctant to change the Senate’s rules need to reevaluate their position and think very carefully, as we have, about the price that will be paid by clinging to policies that however well meant, have the unintended effect of doing great harm to the American people and, potentially, to faith in our democratic institutions.

America simply cannot function with a Senate in paralysis.

Available Resources

Blog

Alliance for Justice’s new Benched! series will keep an eye on what senators and other prominent officials say and do (or don’t do, as the case may be) on judicial nominations during President Obama’s remaining two years in office, in order to hold the Senate accountable for its constitutional obligation to advise and consent regarding the president’s nominees to the federal bench.

By Michelle D. Schwartz AFJ Director of Justice Programs Since Election Day, numerous stories have said that Democrats and progressive groups want ju dges confirmed in the upcoming “lame duck” session because it will be harder to get confirmations once the Republicans take control of the Senate in January. But the most important reasons for confirming… Read more »

Ultimately, Cornyn’s rather half-hearted defense depends not just on the supposed failures of Senate Democrats that are irrelevant, but on the failures of Senate Democrats that do not exist. To his credit, he does “agree that judicial vacancies are an impediment to justice,” but until he and Senator Cruz accept responsibility for solving the vacancy crisis in Texas, justice for his constituents will be hard to come by.

Press Releases

WASHINGTON, D.C., MARCH 27, 2015: Alliance for Justice President Nan Aron issued the following statement today in response to Senator Harry Reid’s decision not to seek re-election: Sen. Harry Reid’s retirement means a true champion of justice will depart from the Senate. By leading the fight for Senate rules reform, Sen. Reid ended the abuse… Read more »

Last month’s Senate confirmation hearings showed beyond any doubt that Loretta Lynch will make an excellent attorney general, according to an analysis of those hearings and Lynch’s record released today by Alliance for Justice.

When judgeships sit vacant, all Americans suffer. Judicial vacancies mean small businesses struggle with uncertainty, injured individuals drown under the weight of medical bills, and victims of discrimination must wait for justice.

In the News

Liberal groups are agitating for another round of filibuster reform after Senate Majority Harry Reid’s (D-Nev.) controversial triggering of the nuclear option last year has done little to alleviate Senate gridlock.

Fix the Senate Now, a liberal-leaning coalition — including the Alliance for Justice, Common Cause, the Communication Workers of America and the Sierra Club — began an intensive campaign after Obama’s reelection to end what they said was unprecedented obstruction by Senate Republicans. Victory arrived last month when Senate Majority Leader Harry Reid (D-Nev.) did what… Read more »

Reports

This short report 1) documents some of the tactics that Republicans have used to block nominees during President Obama’s first term, 2) provides historical context to those tactics, and 3) describes several Senate rules reform proposals that may help alleviate some of the problems that the current rules caused in the judicial selection process.

Featured Resource

This short report 1) documents some of the tactics that Republicans have used to block nominees during President Obama’s first term, 2) provides historical context to those tactics, and 3) describes several Senate rules reform proposals that may help alleviate some of the problems that the current rules caused in the judicial selection process.